COMPANY CONSULTING AGREEMENT
----------------------------
June 10, 1997
Xxxx Xxxxxxx, VP Sales and Marketing
Cholestech Corporation
0000 Xxxxxxxxxx Xxxx,
Xxxxxxx, XX 00000-0000 '
Dear Xxxx:
Xxxxxx-Xxxxxxx Company (the "Company") is pleased to offer Cholestech
Corporation (hereinafter referred to as "Consultant") an opportunity to provide
services to its Xxxxx-Xxxxx Pharmaceutical Division in connection with the
projects listed on Exhibit A attached hereto and made a part of this Agreement,
subject to the following terms and conditions:
1. This Agreement shall be effective from June 10, 1997, until the
earlier of (a) completion of the services specified in Exhibit A; or (b) June
30, 1998, unless terminated earlier in accordance with Paragraph 7.
2. Consultant agrees to provide services under this Agreement to the
best of Consultant's abilities and in accordance with the Company's reasonable
objectives as communicated by Xxxxx Xxxxxxx or her designee or successor. During
the term of this Agreement, Consultant shall be free to provide services to
others provided that such services do not interfere with or create a conflict of
interest with obligations under this Agreement and provided the Company's
facilities or personnel are not utilized for such other services.
3. Any information, including, but not limited to, information relating
to the business, products, marketing plans and policies of the Company or its
affiliates, supplied to Consultant by the Company or its affiliates (either
directly or indirectly, and in whatever form) or developed by Consultant in
carrying out services under this Agreement, shall be deemed to be confidential
and proprietary and the property of the Company with the exception of
information which was already known to Consultant at the time received by
Consultant from the Company or its affiliates (either directly or indirectly),
provided Consultant delivers conclusive written evidence of such prior knowledge
to the Company within forty-five (45) days after the information was disclosed
to Consultant.
4. During and after the term of this Agreement, Consultant agrees not
to use the confidential and proprietary information described in Paragraph 3 for
any purpose other than in furtherance of services under this Agreement and not
to disclose such information to any third party without the prior written
consent of the
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Company. Consultant agrees to return all such confidential and proprietary
information to the Company, including, but not limited to, records, memoranda
and reports, together with all photographic copies, handwritten notes, excerpts
or other copies thereof promptly after request by the Company, or, in any event,
promptly upon expiration or termination of this Agreement.
5. All ideas, inventions and discoveries, whether patentable or not,
conceived by Consultant (alone or with others) as a result of the services
provided under this Agreement shall be the sole and exclusive property of the
Company and is hereby assigned to the Company or as the Company may direct
without additional compensation to Consultant. Ideas, inventions and discoveries
shall be deemed to have been conceived as a result of the services provided
under this Agreement if conceived either (i) during the term of this Agreement,
or (ii) within one (1) year after the termination of this Agreement, if based
upon information provided to Consultant by or at the direction of the Company or
its corporate affiliates or developed by Consultant in carrying out its duties
under this Agreement.
Obtaining, maintaining, defending and enforcing patent rights in any
country of the world with respect to any such ideas, inventions and discoveries
shall be entirely within the discretion and at the expense of the Company, but
Consultant agrees to give all necessary assistance in connection therewith,
including execution of documents.
6. Consultant shall be entitled to receive a fee of one million one
hundred fifteen thousand dollars ($1,115,000.00) provided under this Agreement
to be paid per payment schedule outlined in EXHIBIT A.
7. This Agreement may be terminated by the Company upon thirty (30)
days written notice. In the event of such termination, and notwithstanding any
other provision in this Agreement, fees will be paid by the Company only for
work or services completed prior to the termination date.
Further, this Agreement may be terminated by the Company with immediate
effect upon written notice to Consultant in the event of Consultant's breach of
any of the terms of this Agreement which shall not have been remedied within
fourteen (14) days of written notice with request to do so.
8. Neither party may assign this Agreement or any part thereof without
the written consent of the other party. Notwithstanding the foregoing, either
party may assign this Agreement to a successor to all or a substantial portion
of its business without the consent of the other party.
9. Consultant shall serve as an independent contractor to the Company
and Consultant shall have no authority or capacity to bind the Company and its
affiliates or to act on their behalf. This Agreement does not create a
partnership between the parties hereto. Consultant expressly acknowledges for
itself, its
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employees, agents and subcontractors, that none of its employees, agents or
subcontractors are employees of Company and that none of its employees, agents
or subcontractors are entitled to participate in any benefit plans of Company.
Consultant further acknowledges that none of its employees, agents or
subcontractors are eligible to participate in any such benefit plans, even if it
is later determined that the status of any of them was that of an employee
during the period of this engagement of Consultant by Company. Consultant on
behalf of itself and its employees, agents and subcontractors, hereby expressly
waives any claim for benefits coverage attributable to the services provided
under this Agreement. Consultant shall provide Company with an acknowledgement
in the form of Exhibit B attached hereto from each and all of its employees,
agents and subcontractors who perform services under this Agreement.
Further, Consultant shall indemnify the Company for any liability of
the Company or its affiliates for any bodily injury or property damage incurred
by the Company and caused by Consultant in performance of services under this
Agreement, unless resulting solely from the gross negligence or willful
misconduct of the Company or its affiliates,
10. Consultant declares that Consultant has complied with all federal,
state and local laws that may be required to provide services hereunder,
including, without limitation, those regarding business permits and licenses.
11. Consultant understands and acknowledges awareness ef the following:
(a) Neither federal, nor state, nor local income tax nor payroll tax of
any kind shall be withheld or paid by the Company on behalf of
Consultant or the employees of Consultant. Consultant shall not be
treated as an employee with respect to services provided hereunder for
federal or state tax purposes.
(b) No workers' compensation insurance shall be obtained by the Company
concerning Consultant or any employees of Consultant. Consultant shall
comply with applicable workers' compensation law concerning Consultant
and any employees of Consultant.
(c) Consultant is responsible to pay, according to applicable law,
Consultant's income taxes, Independent tax counsel of Consultant's own
choice should be consulted with respect to such matters.
12. Consultant shall keep records of its work performed in connection
with this Agreement consistent with good business, medical and research practice
and in any event, as and in a manner in which the Company directs.
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13. Consultant agrees to provide periodic written status reports, as
reasonably requested by the Company, of Consultant's services performed
hereunder.
14. Paragraphs 3, 4, 5 and 9 herein shall survive the termination or
expiration of this Agreement.
15, A waiver by either party of any term or condition of this Agreement
in any instance shall not be deemed or construed to be a waiver of such term or
condition for the future, or of any subsequent breach thereof. All rights,
remedies, undertakings or obligations contained in this Agreement shall be
cumulative and none of them shall be in limitation of any other right, remedy,
undertaking or obligation of either party.
16. If and to the extent that any court of competent jurisdiction holds
any provision of this Agreement to be invalid or unenforceable in a final
nonappealable order, such holding shall in no way affect the validity of the
remainder of this Agreement.
17. Any notice given to a party under or in connection with this
Agreement shall be in writing and shall be personally delivered or deposited in
the United States mail, postage prepaid, by certified mail with return receipt
requested, to the party at the address set forth below for such party:
TO THE COMPANY: Xxxxxx-Xxxxxxx Company
000 Xxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx, PharmD
with a copy to: Assistant General Counsel, Pharmaceuticals, X.X.
Xxxxxx-Xxxxxxx Company
000 Xxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
TO CONSULTANT: Cholestech Corporation
Attn: Xxxx Xxxxxxx
0000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
or, to such other address as to which the party has given notice. Such notices
shall be deemed given upon receipt.
18. This Agreement shall be governed by and construed in accordance
with the law (other than provisions relating to conflict of laws) of the State
of New Jersey.
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19. This letter contains the entire agreement between Consultant and
the Company with respect to the transactions contemplated herein and supersedes
all previous written and oral negotiations, commitments, and understandings. Its
terms shall not be altered or otherwise amended except pursuant to an instrument
in writing signed by each of the parties hereto and making specific reference to
this letter. Notwithstanding the foregoing, the obligations of Consultant under
any existing nondisclosure or confidentiality agreements with the Company shall
continue.
Please indicate your agreement to the above terms by signing and
returning the enclosed duplicate original of this letter Agreement.
Very truly yours,
XXXXXX-XXXXXXX COMPANY
By: /s/ X. X. Xxxxxx
-----------------------------
Name: X. X. Xxxxxx
Title: Vice President Finance
6/18/97
Accepted and Agreed to
as of the date first
above written:
Cholestech Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: VP Sales & Marketing
6/13/97
------------------------
(Date)
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EXHIBIT A
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Consultant shall provide services to Xxxxxx-Xxxxxxx Company's Xxxxx-
Xxxxx Pharmaceutical Division in connection with the Lipitor Primary Care
Iniatiative:
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Item Per Physician Total
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Cholestech L-D-X(R) Systern 1 1000
Chemistry analyzer and Power
Supply
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Starter Kit (includes) 1 1000
50 Capillary Tubes
50 Capillary Plungers
50 Lancets
1 Mini-Pet Pipette
50 Pipette Tips
1 Accessoy Tray
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Optics Check Cassette 1 1000
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User Manual 1 1000
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Training Video 1 1000
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Procedure Manual 1 1000
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Lipid Profile Cassettes (T-C, 30 30,000
LDL, HDL, TG)
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Control Materials
1-Level 1 2mL vials
1-Level 2 2mL vials 1 pak of 2 vials 1000 2 vial paks
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Marketing Brochures 2000
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Full Warrant 1 year
--------------------------------------------------------------------------------
Cholestech will provide training of investigators 1,000 at two investigator
meetings. Cholestech will provide full technical support throughout the course
of the study.
Payment Schedule:
A fee of one million one hundred fifteen thousand Dollars
($1,115,000.00) will be paid for services provided
First Payment - $500,000.00 will be paid upon signing of contract by
all parties
Second Payment - $515,000,00 will be paid upon completion of shipment
of the above items
Final Payment - an amount of up to $100,000.00 will be paid for
training conducted at the investigators' meetings upon conclusion of
the last of the two investigators' meetings, within 30 days of
Xxxxx-Xxxxx' receipt of consultant's submission of appropriate receipts
(reasonable and appropriate/necessary expenses for travel, lodging,
meals, or per client costs for performance of this agreement with
supporting documentation)
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EXHIBIT B
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TO CONSULTANT AGREEMENT BY AND BETWEEN
Xxxx Xxxxxxx ("CONSULTANT") AND XXXXXX-XXXXXXX COMPANY ("COMPANY") AND
DATED AS OF 6/13/1997 (THE "AGREEMENT")
Xxxx Xxxxxxx (hereinafter referred to as "Employee/Agent/
Subcontractor") hereby expressly acknowledges that he/she is not an employee of
Company and that he/she is not entitled to participate in any benefit plans of
Company. Employee/Agent/Subcontractor further acknowledges that he/she is not
eligible to participate in any such benefit plans even if it is later determined
that his/her status was that of an employee of Company during the period of the
engagement between Consultant and Company under the Agreement. Employee\Agent\
Subcontractor hereby expressly waives any claim for benefits coverage
attributable to the services provided under the Agreement.
EMPLOYEE/AGENT/SUBCONTRACTOR
OF CONSULTANT
/s/ Xxxx Xxxxxxx
-----------------------------
Name:
Date: 6/13/97
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